ACTA "internet enforcement" chapter leaks

Someone has uploaded a PDF to a Google Group that is claimed to be the proposal for Internet copyright enforcement that the USA has put forward for ACTA, the secret copyright treaty whose seventh round of negotiations just concluded in Guadalajara, Mexico. This reads like it probably is genuine treaty language, and if it is the real US proposal, it is the first time that this material has ever been visible to the public. According to my source, the US proposal is the current version of the treaty as of the conclusion of the Mexico round.

I've read it through a few times and it reads a lot like DMCA-plus. It contains, for example, a duty to technology firms to shut down infringement where they have "actual knowledge" that such is taking place. This argument was put forward in the Grokster case, and as Fred von Lohmann argued then, this is a potentially deadly burden to place on technology companies: in the offline world Xerox has "actual knowledge" that its technology is routinely used to infringe copyright at Kinko's outlets around the world -- should that create a duty to stop providing sales and service to Kinko's?

This also includes takedown procedures for trademark infringement, as well as the existing procedures against copyright infringement. Since trademark infringement is a lot harder for a service provider to adjudicate (and since things that might be trademark infringement take place every time you do something as innocuous as taking a photo of a street-scene that contains hundreds or thousands of trademarks), this sounds like a potential disaster to me.

This calls on all parties to ensure that "third party liability" (the idea that ISPs, web-hosts, application developers, mobile carriers, universities, apartment buildings, and other "third parties" to infringement are sometimes liable for their users' copyright infringements) is on the books in their countries. It doesn't spell out what that liability should be, beyond "knowingly and materially aiding" an infringement -- see the Kinko's point above for why this is potentially deadly.

And, of course, this contains the DMCA's injunction against breaking digital locks (that is, circumventing DRM), even though this provision has been in international treaties since 1996 and has done nothing to reduce infringement, has never shown itself to be effective in shoring up the power of these technologies to prevent copies, and has introduced enormous anti-competitive effects into the market.

Also buried in a footnote is a provision for forcing ISPs to terminate customers who've been accused -- but not convicted -- of copyright infringement (along with their families and anyone else who happens to share their net connection).

There's plenty more here -- and we don't know what the rest of the treaty reads like, or what the competing drafts said -- and I'm sure that more astute legal scholars than I will be along shortly with their commentary.

Update: Here's an IDG report on the leak, with more analysis.

Article 2.17: Enforcement procedures in the digital environment (PDF)

My mirror (PDF)

(Thanks, Paolo!)



  1. Absolutely terrifying. This will be a blow to any tech company, and only serves to ensure that the current frontrunners maintain their positions. It also stifles creativity and will lead only to stagnation. Caveat: if this is a real part of the treaty. I sincerely hope it’s a fake.

  2. “This calls on all parties to ensure that “third party liability” (the idea that ISPs, web-hosts, application developers, mobile carriers, universities, apartment buildings, and other “third parties” to infringement are sometimes liable for their users’ copyright infringements) is on the books in their countries.”

    So basically, they’re trying to turn the internet into a regulated medium, the same as traditional television media.

    1. probably, as its the only way to ensure that the cattle keep hearing the good and proper words of the cardinals of enterprise…

    2. Not exactly. Traditional television–the broadcast variety–was regulated (in the U.S. at least) on the logic that the airwaves are a limited public resource. There’s not much I can think of in television regulation that has to do with intellectual property.

      ACTA, on the other hand, is about fencing off intellectual property–and spreading its bizarre enforcement regime to every corner of traditionally legitimate usage, to the benefit of private companies only.

  3. anyone else having the mental vision of burning modems, routers and switches? Heck, lets throw hard-drives, dvd-r’s and tapes on there as well…

    1. turn_self_off: That sounds like an awesome idea. Someone with better Gimp/Photoshop skills than I needs to take a photograph of a Nazi book burning and replace the books with networking and storage equipment.

  4. The irony is that the overall global economy has been retarded by increased copy rights / patents, and would be better served by truncating the maximum duration of patents to about 10 years.

  5. Hey Cory,
    maybe is worth to point attention to this too:

    “According to my source, the US proposal is the current version of the treaty as of the conclusion of the Mexico round”

    Lies all over ACTA. A few days ago the UE published a report on the negotiations in Mexico that reads:

    “Chapter of the Internet, all the discussions revolved around the comments attached to the American proposals. Ces propositions militent pour une responsabilité accrue des intermédiaires techniques, l’inclusion d’une procédure de Notice & Take Down (notification avec menace) contre les acteurs en ligne, etc. These proposals argue for increased accountability of intermediate technology, including a procedure Notice & Take Down (reporting with a threat) against players online, etc.. La question des mesures techniques (sanction juridique des contournements techniques) est restée sur la touche, par manque de temps. The question of technical measures (legal sanction circumvention techniques) remained on the sidelines for lack of time. « Les discussions se focalisent toujours sur la clarification des différents concepts techniques par conséquent il n’ya pas eu beaucoup de progrès en termes de texte commun » note la Commission européenne. “The discussions are always focused on the clarification of various technical concepts therefore there has not been much progress in terms of common text” notes the European Commission. Lors de la prochaine réunion, il est d’ores et déjà entendu qu’Europe et États-Unis feront une présentation de leur système respectif, « pour clarifier les questions ». At the next meeting, it is already understood that Europe and the United States will present their respective systems, “to clarify the issues.”

    Either they did have time and governments all over are LYING or this is already negotiate the Internet.

  6. Broken Link:
    The link
    to “My mirror (PDF)” goes to a “404 Not Found” error.


    The very idea of forcibly “deputising” ISPs or any other kind technology company to behave as an arm of law enforcement entity for other corporations is absurd. Even if it was a good thing, they are not trained to do it.

    Legal systems have evolved in democratic nations with checks and balances designed to protect society from abuse by those in power. This is why Law Enforcement agencies must get warrants, and have “probable cause” before depriving citizens of their rights.

    Ostensibly to “protect copyright” we are supposed to throw out pesky ideas like “innocent until proven guilty” and the rule of law.

    This is so wrong.

  7. As an employee of FedEx Office (what used to be Kinko’s), I can tell you that the official policy is not to reproduce anything without permission of the copyright holders. Books, architectural plans, studio photos, magazine articles all raise the red flag. Not to mention, all of the copiers and computers are labelled with warnings regarding reproducing/downloading copyrighted works. Do the customers read them? Probably not, and most who do probably don’t understand, but I suspect the company has already thought about shifting liability to the customer.

  8. Isn’t it funny that it was created in, and authored by acta acta? And the dimensions are A4, not exactly American.

    1. This could just be because the guy creating the pdf had OpenOffice and is not an American. OpenOffice can be used as a simple word doc-to-pdf converter, and filling in “acta acta” as a placeholder instead of his own name makes sense.

  9. Xerox “knowledge” remains ‘potential’ and not much ‘actual’ until specific knowledge of infringement. Don’t you think?

  10. the history of kinko’s early and middle growth were the “compilation” books created late at night from selected chapters from various copyrighted texts and sold to students via their “helpful” professors. That’s why they expanded in to college towns first, and why the text publishers finally sued them bsucessfully. Now they won’t copy a photograph if it even appears “professional”, and why they moved into more self serve machines.

  11. I have to wonder how they will determine where this liability ends. Trying to figure out who is directly involved in a site and who is a third party can be difficult enough as it is. Will datacenters end up being pressured to shut down entire servers full of sites because a single customer’s customer is accused? Or, worse, to shut down all of a customer’s servers because a media company decided not to do any work beyond identifying owner of the IP address?

    What if someone gets the bright idea to try to apply this liability to upstream providers?

  12. That footnote was really all you needed to say. People who are ACCUSED, even if not CONVICTED, are cut off. You can accuse someone with absolutely no basis. It’ll be a false accusation, but apparently that doesn’t matter anymore.

    I officially accuse everyone involved in this treaty of copyright infringement.

    1. “I officially accuse everyone involved in this treaty of copyright infringement.”

      Very nice work.


  13. With respect, Cory, you’re misreading this. Legal writing is an art in itself and my reading (IANAL) of this is that the term “actual knowledge” means something quite different.

    It’s statistically certain that copyright infringement is going on in a Kinkos somewhere, but that doesn’t mean I have “actual knowledge” of it: I didn’t see the infringement, and I couldn’t tell you who is doing it or where they are. Similarly, an ISP doesn’t have “actual knowledge” that infringement is going on, unless, say, they do packet-sniffing to detect trade in pirated albums. The bit of the treaty you linked to actually broadens the definition of knowledge to include being “aware of the facts or circumstances from which infringing activity is apparent,” but even that would require more than a statistical inference about the habits of students at copy centers.

    1. Query: Do you mean “legal writing” as in” statute drafting” (a truly technical type of English, using verbal forms closely following previously enunciated, Court-determined definitions): or perhaps you mean “legal writing” as in “academic English” (using language suitably hedged about with qualifications, such qualifications sufficient to resolve the specificity of the assertion being made, thereby limiting the ambit of its application, and thus of its truthfulness) – which is less strictly limited to legal matters, but variants of which are used in most academic disciplines?

      Well I guess this stuff is jargon, no matter how you slice it: legal jargon wrapped in diplomat-speak.
      Difficult to understand that is, if you “just drop into the middle of it”.

      As to your main point, though:
      Yes indeed: actual knowledge is different than mere suspicion. If you need to ask a question, then you do not have actual knowledge (ie. “Did you get prior written approval, prior to foto-copying that book?” ) – if the question is not asked, and the copier does not volunteer the negative unprompted, then the observer does not have actual knowledge of infringement, eh? Even if that observer’s watching such infringement in fact take place: he simply lacks the info to make the determination: he lacks actual knowledge of the infringement.

      Kinda like not knowing what those guys in the park are drinking from their paper-bag-covered beverage containers – you suspect it’s booze, but if you have to ask, you do not know: you do not have actual knowledge.

      Good ol’ epistemology…

    2. What you don’t understand is when I as a publisher informs you that people are using your equipment to infringe my copyright. Then under Acta you are then legally liable to ensure that no longer happens. If you fail to do so, I can sue you. Your pockets are a lot deeper than your customers. This would most likely end self service kiosks.

      1. In the US ISPs who conduct investigations and make legal determinations can be held liable and sued by their customers. This is why we have JUDGES. If someone is stealing your work – get a lawyer, bring your case forward and if there is merit a JUDGE will issue a court order.

  14. I hereby accuse the world in participating in copyright infringement. Therefore the internet shall shall be terminated momuntarily @!&$%@!

  15. I propose we sue Western Digital, Seagate, Maxtor, Sony, Apple, Samsung, and all other makers of devices containing significant flash or hard drive storage. They must know that the driving force behind the sales of higher capacity storage media is “piracy”.

  16. Why is the government going on & on about copy write infringement & so on? Is it really going to change the fact that it happens all the time? What do we really gain from this? Someone please let me know.

  17. What the ISPs should do is to REFUSE to allow any copyrighted materials to be transmitted if this passes. Simply refuse to transmit any of the data from the media companies unless the media companies can prove every single byte is licensed.

  18. Based on Cory’s summary, most of the provisions don’t seem too scary or unexpected – if they keep using terms like ‘infringement’ there’s plenty of room for interpretation that that means ‘found to be infringing by a court of law’ (that’s the current position in Australia).

    What’s more concerning is the footnote reference to taking people down based on mere allegations of infringement – that is genuinely extending the power of copyright owners way beyond any existing level, and is bound to be abused.

    When have people ever been punished based on mere allegations of a crime before?

    1. Actually, having looked at the document, I’m not sure I agree with your interpretation that it will require termination on accusation.

      3(b)(II) does look bad:

      an online service provider expeditiously … disabling access to … activity, upon receipt of legally sufficient notice of alleged infringement …

      but it’s qualified by:

      except that the provisions of (II) shall not be applied to the extent that the online service provider is acting solely as a conduit for transmissions through its system or network.

      So it doesn’t apply to termination because of file sharing, unless the ISP is doing more than providing the internet connection – a limitation which was interpreted pretty fairly in Australia’s iiNet case.

      The rest of the clause is basically the same as the existing DMCA and the USFTA ‘notice and takedown’ provisions.

  19. “What you don’t understand is when I as a publisher informs you that people are using your equipment to infringe my copyright. Then under Acta you are then legally liable to ensure that no longer happens. If you fail to do so, I can sue you. Your pockets are a lot deeper than your customers. This would most likely end self service kiosks.”

    Sure, but a DVD drive can be used to play things legally. The same logic would have us banning kettles, because the hot water can be used to harm someone by splashing it on them. All this is, is big business and the society elite trying to gain more control and oppress the people more than before. It won’t be long before there is serious rioting on the streets if they keep it up. Because, people will want to be able to take photos, and if ACTA keeps going, cameras will become illegal.

  20. @damph

    Our domestic IP law is already currently tougher than the USA’s in many ways according to one of our leading IP lawyers:

    The furthest Canada seems inclined to go down the copyright insanity road is notice and notice.

    The point is that Canada and all the other countries of the world are sovereign nations. We make our own laws. We decide get to decide which treaties to sign and whether or not to ratify.

    Just because the American government caved to the demands of a corporate lobby group and legislated in favor of said lobby (DMCA takedowns) to the detriment of their citizens, culture and American society as a whole (by throwing out little legal “luxuries” like the rule of law and presumption of innocence) does not mean that the rest of the world needs to follow suit.

    We don’t want no stinkin’ “DMCA and the USFTA ‘notice and takedown’ provisions. ”

    Down with ACTA. Tell your elected representatives NO.

  21. There’s a Facebook group dedicated to raising awareness about it, please do join. It’s called:

    We need 5m people to prevent the labels killing internet freedom with ACTA.

    Feel free to join!

  22. DirtyFreq: the copyright lobbyists push it, buy I suspect governments go along because it gives them an excuse to crank down on this anarchistic communications medium they inadvertently let into the public’s hands.

  23. This treaty points to a potentially nightmarish worst-case scenario.


    What’s the realistic case scenario?

    Current anti-infringement laws don’t work because people ignore them. So when people are just ignoring the new laws instead, what difference will there be?

    ISPs might receive ten thousand notices per day requiring them to terminate users’ accounts. Clearly they’re not going to do that, at the loss to themselves of customer revenue and the internal costs of handling these cases.

    Our jails are not going to overrun with millions of infringers, New York City is not going to ban tourists’ cameras in Time Square.

    I’m concerned about these issues but doom-mongering isn’t my style.

    So, what’s the realistic big picture outcome of this treaty?

    1. IRL copyright violations are like shoplifting right? the more serious your crime, the more you pay. or it could be like speeding and stuff like that? demerits for how severe the crime is? there was a discussion on reddit about this the other day – small, very likely fines are better at keeping people in check than large lawsuits – we don’t have tens of millions of dollars lying around in our bank accounts. well most of us anyway ;P.

      also, most people outside the US – we need easier and cheaper ways to buy stuff and faster ways to reach us – like in Japan, they add the cost of your digital products to your phone bill – easy. not like in other countries where you need to get a credit card (i don’t have one)- to even get paypal. if they let me topup my digital credit at my atm. at this moment, i have to run from store to store and ask if they carry certain products – CDs and books – then wait for 6 to 8 weeks to get here (s.e asia).

      and to #38
      >Still, this does not mean that we can relax. This text should scare us. The text as it is now, effectively means the end of free speech on the internet.

      yes. but like a commenter said previously, people are one day gonna wake up with this law already in place and there will be nothing you can do about it :(

    2. You wrote: “ISPs might receive ten thousand notices per day requiring them to terminate users’ accounts. Clearly they’re not going to do that, at the loss to themselves of customer revenue and the internal costs of handling these cases.”

      But you’re wrong. If they don’t do this, then stop being protected as a “safe harbor” and THEY are shut down.

      You also wrote: “Our jails are not going to overrun with millions of infringers, New York City is not going to ban tourists’ cameras in Time Square.”

      In the UK tourists are being harassed and arrested for taking photos.

      In the US last year a young woman spent a couple of nights in jail for making a home movie of her sister’s birthday party in a movie theatre.

      The theatre offered a “have your birthday here” promotion, so thats where the family went. The girl photographer was detained by the theatre staff. She had taken a total 3-4 minutes of video, including trailers, and did voice over narration for it. Clearly this was a home movie and still she went to jail. This happened in the USA before ACTA.

      I think it was Italy that was looking at jailing 4 Google executives for allowing an offensive video to be posted. As soon as they received a complaint they took it down immediately. But the Italian court thought they should be censoring what was put online and taking it off before complaints are made.

      This is NOT doom mongering. These things are happening in anticipation of ACTA.

      It’s the little erosions we allow to pass that build and build and build send the world to hell.

  24. “knowingly and materially aiding” is as clearly defined as the I’ll know it when i see it obscenity law. I suspect that “knowingly” will turn into “potentially” very very quickly and hold third parties responsible is a very slippery slope. Before you know it, the electric company will be cutting your power because you have the “potential” to break copyright laws or computer manufacturers getting sued into oblivion because the computers they make have hard drives.

  25. This resembles the text that was discussed in Mexico because the public reaction ( from the European Union on the discussions “fits”. So I believe this text is the real deal.

    In April there will be more talks about this chapter. I don’t believe “they” discussed this already in depth. I think the US merely showed this text to the other parties in order for them to respond to it in April.

    There is no way in hell the EU is gonna implement the policies as portrait here. The response from the EU reminds the US that on several points, the US will have to make special deals with each and every European country.

    The EU delegation is not authorized to make these deals. Separate negotiations with Membership Countries will take a very long time and I don’t think will have any chance of succeeding. That’s why this ACTA stuff is going on in secret in the first place.

    Still, this does not mean that we can relax. This text should scare us. The text as it is now, effectively means the end of free speech on the internet.

  26. OK, so the OP read through it a few times… did anyone else, or are we all going off Cory’s summary (which we might not have even read very carefully)…

    ah, never mind, Frist psot (in blogging and commenting) trumps all.

  27. Would this also mean that storing a web page offline infringes the copyright of the web site?

    If I need a bunch of ingredients for a meal, I don’t usually write down a list, I’ll photograph the page in the cook book on my phone and use the phot as my shopping list in the supermarket. Does mean that Nokia should stop me using my phone?

    1. @Anon • #41

      Photographing copyright material? On your phone… which is always connected?

      Yes, they would call that infringing use. Under ACTA Nokia would have to shut you down.

      And how do they know it’s there? They have to monitor everything on our digital equioment. Currently in Canada our regulatory body the CRTC has given the backbone ISP Bell Canada to monitor all internet traffic so they can decide what traffic to deliberately impede. They use Deep Packet Inspection (DPI) to do this. DPI gives them the technical ability to look at anything unencrypted so they can read our email if they want. Or look at our kid’s picture.

      One of the biggest fighters against the UK’s digital Economy Bill is an ISP called talktalk. They aren’t fighting this law just because of the potential for abuse or for the privacy issues… this will be very expensive for them. Adding people to monitor/assess/censor all the content online all the time will make internet costs quadruple at least.

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